Who The Hell Is Actually In Charge Of The US Patent And Trademark Office?

from the perhaps-no-one dept

I recognize that many (especially regular Techdirt readers) will assume from the title above that the question is a rhetorical one in response to the latest craziness around a stupid trademark or awful patent. But, no, we mean that literally. You see, right before the Trump inauguration, it was widely reported that Michelle Lee would stay on as the Director of the US Patent and Trademark Office. That was undeniably good news. For all the complaints we have about the USPTO, Lee has done a fairly amazing job running that office, and seems to be one of the first Patent Office directors who actually understands how patents can do serious harm to innovation. Keeping her on would be a really good sign. After seeing the stories claiming that she was staying, we'd mostly moved on. However, Politico reporter Nancy Scola sent me down something of a rabbit hole after tweeting that it's basically impossible to know who's in charge of the Patent Office right now.

That seems like that should be that. However, there are conspiracy theories afoot -- mainly being discussed by Gene Quinn over at IP Watchdog. Gene and I disagree about basically everything as it relates to patents, and he's got a history of insulting me, so I have every reason to basically ignore him. But, on this, he may have a point. And the questions about whether or not Lee is actually in charge are also being asked by a much more respectable patent website, Patently-O.

The issue started when Quinn noticed that, despite the claims that Lee was staying on, the Commerce Department (which the USPTO is a part of) leadership page says the role is "vacant." Here's the latest screenshot I took:

As for the PTO's own website, Quinn rightly points out that its leadership page still lists out a number of other individuals who have announced resignations and are no longer there, but whose profiles are still on the website. The Commerce Department seems to be refusing to comment to anyone who asks (I've sent in my own question) and it's quite unclear if Michelle Lee really is the director.

If you look through the fairly long list of articles by Quinn on the subject, it's quite clear that he (as someone who is not a fan of Lee) is hoping that she's been pushed out, and is trying to drum up controversy over the possibility that she might remain. But the lack of any clarity from anyone... is bizarre. Quinn's most recent post on the subject notes that while no one seems willing to say who's running things, Lee "continues to be seen" in the building. That would certainly support the theory that she's staying. But... she's also cancelled a bunch of speaking engagements, and no one at the USPTO or Commerce Dept. seems willing to say anything. Also, in an earlier report, Quinn noted that he'd been told, unofficially, that Drew Hirshfeld is "Acting Director," implying Lee had left. But the whole thing seems to be... unclear:

Who is running the United States Patent and Trademark Office? That straightforward question shouldn’t be imponderable, but it seems that the Trump Administration has chosen to sequester the Director as if he or she has gone into the witness protection program. Indeed, we seem no closer to an answer to who is running the USPTO today than we were 18 days ago. Although sources tell me that Michelle Lee continues to be seen on the 10th floor of the Madison Building, which is where the Director’s Office is located.

As we begin the third week of the Trump Administration I cannot tell you with any definitive certainty who is Director, or if there is an Acting Director, or if the Commissioner for Patents is merely carrying out the responsibilities of Director without being named Acting Director, which has been the case at least once in the past.

Yes, the Trump transition has been a bit of a mess, but this seems particularly bizarre. There's a decent chance that the problem is just that something is afoot and it just hasn't been discussed publicly yet, so the Commerce Dept. and PTO are staying silent. But, as Quinn notes, there are actual, real implications of not having anyone as PTO director:

Indeed, there are many things that the law leaves to the discretion of the Director of the USPTO. While some of those decisions have been delegated out to subordinate officials within the Office, some do still remain only with the Director. For example, if you are a patent owner who believes you are being harassed by repeated post grant challenges the Director alone has the authority to provide a protective remedy. Without knowing who is Director how can patent owners appropriately seek to obtain the assistance of the Director?

Another thing that will soon become problematic is with respect to lawsuits involving the USPTO. Who should be the named party? Generally, the Director or Acting Director of the agency is named as the party on behalf of the agency. While it seems a small point, properly identifying the party is no minor matter in federal court. Are patent applicants supposed to style their appeals to the Federal Circuit as Applicant v. John or Jane Doe, Director of the U.S. Patent and Trademark Office?

In his most recent post, Quinn further wonders if those of us who tend to think certain patents shouldn't have been issued could even use this as a way to claim patents issued recently are invalid:

Sources tell me that the USPTO was prepared last week to issue patents with the signature of Drew Hirshfeld, who is the Commissioner of Patents and seems to be currently in the position of Acting Director. At the last minute, however, a decision was made to reverted back to Michelle Lee’s signature. This creates several significant problems.

First, if Lee is not currently the Director patents that are being issued with her signature are being issued in violation of §153. If we know anything about patent litigators it is that they raise every challenge possible, and it is only a matter of time before the provenance of patents issued during these first weeks and months of the Trump Administration are challenged as being invalid.

These are not unsolvable issues, once things are clarified, but it still... very, very strange. I doubt that challenging the validity of the patents would have much of a chance, but it is interesting. And while I desperately hope that Lee remains, and Quinn desperately hopes that she is forced out, I think (for once!) Quinn and I agree: whatever is happening, and whoever is in charge, should be disclosed publicly.

Re: Re: Guess the highest bidder hasn't stepped forth yet.

If you think opposition to the Trump Trainwreck hinges on thoughtful comments you haven't been paying attention very long. The left AND some on the right have appealed to rational thinking people and they fall on deaf ears to this day. Yes there is popular support that grows daily, thanks in part to Trump's actions but the real fight is in Congress. With our campaign finance laws in tatters, chances for opposition is dwindling fast. Just look at the Secretary for Education, she flat out bought her position with only 2 Republicans breaking ranks to attempt blocking her confirmatiom.I don't know what else there is to say that can change people's minds on this debacle.

Re: Re: So...stop doing that

Agreed. Yes, there's been some mad hysteria (I howled with laughter at the Red Scare nonsense being deployed by the liberals) about the Trump administration but this is important; who is driving the USTPO truck? It seems to be on cruise control at the moment. That's not good. Mike's post is not hysterical, it's reasonable. I've been in positions where there was a bottleneck on executive administration for particular jobs I needed doing. There was no plan for what would happen if that person wasn't there so jobs were held up till they got back and got around to dealing with it. In this case, the bottleneck is at Lee's desk. So... who is going to answer Quinn's question, and ultimately Mike's?

There is a wolf in the pasture, OldMugwump. That is why the sheep are running.

Re: Re: Re: So...stop doing that

Thank you, Wendy, for once again showing that civil discourse is possible between people of differing viewpoints.

Actually I agree with everything you say here - Mike's post is entirely reasonable, and what is going on with the USPTO (and many other things) is indeed worrying.

My original comment was directed at the AC who snarked that the answer is "Guess the highest bidder hasn't stepped forth yet." (Certainly not at Mike, for whom I have great respect.)

My position is pretty clear from my other comments in this thread. I'm no fan or supporter of Mr. Trump.

It pains me greatly to find myself in the position of defending him against unreasonable accusations. There are plenty of reasonable accusations to attack him with - not least his positions on IP law, civil forfeiture, trade, immigration, civil rights, and authoritarianism in general.

Allowing our "collective heads to explode" is not a strategy. And we need strategy.

Re: Re: So...stop doing that

During a meeting at the White House with county sheriffs, Trump said he would “destroy” the career of a Texas state legislator who had proposed restrictions on seizures of property belonging to suspected criminals.

“Do you want to give his name?” Trump asked Rockwall County, Texas, Sheriff Harold Eavenson after he complained about the legislator. “We’ll destroy his career.”

Re: Re: Re: Re: Re: Re: So...stop doing that

It's not uncommon to hear "I'm not a racist but...." followed by something racist. Now I keep seeing "I'm not a Trump supporter but....", followed by imbecilic Trump wingnuttery.

The Trump "I trust nothing in the media unless I see it myself" excuse - about a widely reported news story reported by a traditional accredited neutral news service - with video of Trump himself saying it - and making it clear even if you don't watch the video that everyone saw him say it - is just such a case.

Re: Re: Re: Re: Re: Re: Re: So...stop doing that

So if I was accusing anybody of trying to start a civil war, I was accusing Trump's defenders.

Please read the thread with a bit more care before making accusations.

Of course, it takes two to tango, so in that sense my comment does apply to both sides.

And, yes, I've got other things going on in my life beside politics and don't watch every news video. I spend way too much time posting here as it is.

Just in this thread you've talked about my "head exploding", accused me of demanding "unspoiled unconditional love for Trump", of equating "criticizing Trump with trying to start a civil war", and of spouting "imbecilic Trump wingnuttery".

Yet, also in this thread, I made clear I oppose Trump, oppose civil forfeiture, and fear "discrediting all opposition to Trump".

Elsewhere on TD (and you and I have both been here for a while) I've said I oppose Trump on immigration, trade, IP policy, and more, and that I prefered Hillary Clinton (who I despise) to Trump.

And I haven't called you any names, or insulted you.

So it seems to me that it's you who are demanding unspoiled unconditional hate for Trump, and smearing and insulting those who take an even slightly less extreme position. [See, I do know how to use markdown.]

We are all going to have to live together in this country under President Trump (ugh; pains me to say that title) for the next four, and maybe eight, years. Half the electorate voted for him (not including me).

If everyone who expresses anything other than unspoiled unconditional hate for the POTUS is an "imbecilic wingnut" then so are fully half of your fellow citizens.

I think it would be better for all of us if passions cooled a bit and we stopped calling each other names. Your opponents may indeed be wrong, but that does not make them monsters.

With that, I'll move on to other threads and topics. Have a good day, Roger.

Re: Re: Guess the highest bidder hasn't stepped forth yet.

Don't make up stupid complaints completely unsupported by evidence.

Interesting, you've managed to do exactly what you're complaining about in your very next sentence (emphasis in original changed to bold instead of italics as markdown has made the whole quote italics!):

Everybody on the left has been doing this, and they are making themselves look ridiculous.